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EXHIBIT 1.1
▇▇▇▇▇ NETWORKS N.V.
PLACEMENT AGENCY AGREEMENT
February 8, 2000
CHASE SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ Networks N.V., a Netherlands company, (the "Company"), confirms
its agreement with you (the "Agent") with respect to the issuance and sale by
the Company of up to $30 million of its common shares, par value one Dutch
Guilder per share (the "Shares"), to be issued from time to time. Subject to the
terms and conditions stated herein, the Company hereby appoints the Agent, as
the agent of the Company for the purpose of soliciting and receiving offers to
purchase the Shares from the Company on a best efforts basis.
Section 1. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent as of the date hereof,
as of the Closing Date (defined herein) and as of the times referred to in
Section 6 hereof (the Closing Date and each such time being hereinafter
sometimes referred to as a "Representation Date"), as follows:
(1) A registration statement (File No. 333-94963) on Form F-3
with respect to, among other things, the Shares has been prepared and filed by
the Company with the Securities and Exchange Commission (the "Commission") in
compliance in all material respects with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder, and has become effective under the
Act. As used in this Agreement, (i) "Registration Statement" means such
registration statement when it became effective under the Act, and as from time
to time amended or supplemented thereafter (if any post-effective amendment to
any such registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the time the most recent such
amendment has been declared effective by the Commission); (ii) "Basic
Prospectus" means the most recently filed prospectus (including all documents
incorporated therein by reference) included in the Registration Statement; and
(iii) "Prospectus" means the Basic Prospectus (together with all documents
incorporated therein by
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reference) and any amendments or supplements thereto relating to the Shares, as
filed with the Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or suspending
the use of the Prospectus. Any reference in this Agreement to amending or
supplementing the Prospectus shall be deemed to include the filing of materials
incorporated by reference in the Prospectus after the Closing Date (defined
herein).
(2) The Registration Statement and each Prospectus conformed,
and the Registration Statement and each Prospectus will conform as of the
applicable Representation Date and at all times during each period during which,
in the opinion of counsel for the Agent, a prospectus relating to the Shares is
required to be delivered under the Act and solicitation has not been suspended
by the Company under Section 2(b) (each a "Marketing Period"), in all material
respects to the requirements of the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); and the Registration Statement and each Prospectus
do not, in the light of the circumstances under which they were made, and will
not as of the applicable Representation Date and at all times during each
Marketing Period, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that no representation or
warranty is made as to information contained in or omitted from the Registration
Statement or any Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Agent specifically for inclusion
therein.
(3) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing in each jurisdiction in which the laws of
such jurisdiction require such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(4) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and except as set forth in the Prospectus are owned directly
or indirectly by the Company as described in the Prospectus, free and clear of
all liens, encumbrances, equities or claims.
(5) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms; the
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action and did not and will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of the
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Company or any of its subsidiaries pursuant to any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor did or will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets;
except for the registration of the Shares under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Shares by the Agent, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body was or is required for the execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby, except where the failure to obtain such
consent, approval, authorization or order to make such filing or registration
will not have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operation, business or prospects of the Company
and its subsidiaries (a "Material Adverse Effect").
(6) The Shares have been validly authorized for issuance and
sale pursuant to this Agreement and the issue and sale of the Shares will not
violate any applicable law or agreement or instrument then binding on the
Company, and when issued and delivered against payment therefor as provided
herein, the Shares will be duly and validly issued, fully paid and
non-assessable. The Shares will conform to the descriptions thereof contained in
each Prospectus.
(7) Except as disclosed in the Registration Statement, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company or any subsidiary
of the Company to file a registration statement under the Securities Act with
respect to any securities of the Company or any subsidiary of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(8) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood, earthquake or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
change in the capital stock (other than pursuant to the Company's share
repurchase program, the retirement of treasury common shares to the status of
authorized and unissued, and pursuant to the Company's stock option plans or
employee stock purchase plans as disclosed in or incorporated by reference in
the Prospectus) or material increase in the long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus.
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(9) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly and will present
fairly at all times during each Marketing Period the financial condition and
results of operations of the entities purported to be shown thereby; and said
financial statements (including the related notes and supporting schedules) have
been and will be at all times during each Marketing Period prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved.
(10) Ernst & Young, whose report appears in the Company's most
recent Annual Report on Form 20-F which is incorporated by reference in the
Prospectus, and if not the same auditors, the Company's outside auditors as of
the applicable Representation Date, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(11) The Company and each of its subsidiaries have insurable
title in fee simple to all real property and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as will not
have a Material Adverse Effect. All real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, which such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
(12) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(13) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service ▇▇▇▇ registrations,
copyrights and licenses necessary for the conduct of their respective businesses
and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(14) Except as otherwise incorporated by reference into the
Registration Statement, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries, might
have a Material Adverse Effect on the Company and its subsidiaries; and to the
best of the Company's
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knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(15) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations.
(16) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers or stockholders
of the Company on the other hand, which is required to be described in the
Prospectus which is not so described.
(17) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might be expected
to have a Material Adverse Effect on the Company and its subsidiaries.
(18) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been determined adversely
to the Company or any of its subsidiaries, which has had (nor does the Company
have any knowledge of any tax deficiency which, if determined adversely to the
Company or any of its subsidiaries, might have) a Material Adverse Effect on the
Company and its subsidiaries.
(19) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed in
the Prospectus, the Company has not (i) issued or granted any securities, other
than pursuant to the Company's stock option plans or employee share purchase
plans as disclosed in or incorporated by reference in the Prospectus, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock (other than
regular quarterly dividends).
(20) The Company (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(21) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material respect,
and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
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term, covenant or condition contained in any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business.
(22) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(23) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission promulgated thereunder.
(24) The documents incorporated by reference into any
Prospectus have been, and will be as of the applicable Representation Date and
at all times during each Marketing Period, prepared in all material respects
in conformity with the applicable requirements of the Act and the Rules and
Regulations and the Exchange Act and the rules and regulations of the Commission
thereunder; and none of such documents contained, in the light of the
circumstances under which they were made, or will contain as of the applicable
Representation Date and at all times during each Marketing Period, an untrue
statement of a material fact or omitted, in the light of the circumstances under
which they were made, or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
such documents have been, or will be, as of the applicable Representation Date
and at all times during each Marketing Period, timely filed as required thereby.
(25) The Company is not a passive foreign investment company
("PFIC") or foreign personal holding company ("FPHC") within the meaning of
Sections 1296 and 552 of the Internal Revenue Code of 1986, as amended, and the
Company is not aware of any contemplated action by any shareholder or
shareholders of the Company which would cause the Company to become a PFIC of
FPHC.
(26) All dividends and other distributions declared and
payable on the Shares of the Company may under the current laws and regulations
of The Netherlands and any political subdivision thereof be paid to holders
thereof in U.S. dollars that may be freely transferred out of The Netherlands.
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(aa) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by or on
behalf of the Agent or purchasers of Shares from the Company to The Netherlands
or any political subdivision or taxing authority thereof or therein in
connection with (i) the issuance, sale and delivery by the Company to or for the
respective accounts of the purchasers of the Shares, or (ii) the registering and
issuance of the Shares pursuant to the public offering of the Company pursuant
to the Registration Statement.
Section 2. SOLICITATIONS AS AGENT
(1) Appointment. Subject to the terms and conditions stated
herein, the Company hereby appoints the Agent as agent of the Company for the
purpose of soliciting or receiving offers to purchase the Shares from the
Company by others on a best efforts basis. On the basis of the representations
and warranties contained herein, but subject to the terms and conditions herein
set forth, the Agent agrees, as Agent of the Company, to use its best efforts to
solicit offers to purchase the Shares upon the terms and conditions set forth in
the Prospectus.
(2) Suspension of Solicitation. The Company reserves the
right, in its sole discretion, to suspend solicitation of offers to purchase the
Shares commencing at any time for any period of time or indefinitely. Upon
receipt of telephonic notice confirmed by facsimile notice from the Company, the
Agent will forthwith suspend solicitation of offers to purchase Shares from the
Company until such time as the Company has advised the Agent that such
solicitation may be resumed.
Upon receipt of notice from the Company as contemplated by
Section 3(c) hereof, the Agent shall suspend its solicitation of offers to
purchase Shares until such time as the Company shall have furnished them with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, if such filing is made by the Company, contemplated by Section 3(c)
and shall have advised the Agent that such solicitation may be resumed.
(3) Agent's Commission. Promptly upon the closing of the sale
of any Shares sold by the Company as a result of a solicitation made by or offer
to purchase received by (i) the Agent, the Company agrees to pay the Agent a
commission equal to 2 1/2% of the aggregate purchase price paid for such Shares
and (ii) the Company, on its own behalf, or by any other agent of the Company
(other than the Agent), the Company agrees to pay the Agent a commission equal
to 1 1/4% of the aggregate purchase price paid for such Shares at such closing.
(4) Solicitation of Offers. The Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase Shares received
by it as Agent. The Company shall have
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the sole right to accept offers to purchase the Shares and may reject any such
offer in whole or in part. No Shares which the Company has agreed to sell
pursuant to this Agreement shall be deemed to have been purchased and paid for,
or sold by the Company, until such Shares shall have been delivered to the
purchaser thereof against payment by such purchaser.
(5) Delivery of Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
not later than 10:00 A.M., New York City time, on the date of this Agreement or
at such later time as may be mutually agreed upon by the Company and the Agent,
which in no event shall be later than the time at which the Agent commences
solicitation of offers to purchase Shares hereunder (the "Closing Date").
Section 3. COVENANTS OF THE COMPANY
The Company covenants and agrees:
(1) Delivery of Signed Registration Statement. To furnish
promptly to the Agent and to its counsel a signed copy of the Registration
Statement as originally filed and each amendment or supplement thereto.
(2) Delivery of Other Documents. To deliver promptly to the
Agent, and in such number as it may request, each of the following documents:
(i) conformed copies of the Registration Statement, (ii) the Basic Prospectus,
(iii) each Prospectus and (iv) during any Marketing Period, any documents
incorporated by reference in the Prospectus.
(3) Revisions to Prospectus - Material Changes. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, not misleading, or if it is
necessary at any time to amend any Prospectus to comply with the Act, to notify
the Agent promptly, in writing, to suspend solicitation of purchases of the
Shares; and if the Company shall decide to amend or supplement the Registration
Statement or any Prospectus, to promptly advise the Agent by telephone (with
confirmation in writing) and to promptly, in writing, prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(4) Commission Filings. To timely file with the Commission
during any Marketing Period, all documents (and any amendments to previously
filed documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
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(5) Copies of Filings with Commission. Prior to filing with
the Commission during any Marketing Period, (i) any amendment or supplement to
the Registration Statement, (ii) any amendment or supplement to any Prospectus
or (iii) any document incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to furnish a copy
thereof to the Agent.
(6) Notice to Agent of Certain Events. To advise the Agent
immediately (i) when any post-effective amendment to the Registration Statement
relating to or covering the Shares becomes effective, (ii) of any request or
proposed request by the Commission for an amendment or supplement to the
Registration Statement, to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information and the
Company will afford the Agent a reasonable opportunity to comment on any such
proposed amendment or supplement, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
part thereof or any order directed to any Prospectus or any document
incorporated therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any document
incorporated by reference in any Prospectus, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose, and (v) of the happening of any event which makes
untrue any statement of a material fact made in the Registration Statement or
any Prospectus or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein not
misleading.
(7) Stop Orders. If, during any Marketing Period, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time.
(8) Earnings Statements. As soon as practicable, but not later
than 18 months from the date hereof and 18 months from the end of the Marketing
Period, to make generally available to its security holders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Company's most recent Annual Report on Form 20-F filed with the Commission prior
to the date of such acceptance which will satisfy the provisions of Section
11(a) of the Act (including, at the option of the Company, Rule 158 of the Rules
and Regulations);
(9) Copies of Reports, Releases and Financial Statements. For
three years from the date hereof, to furnish to the Agent, not later than the
time the Company makes the same available to the appropriate recipients, copies
of all public reports and financial statements furnished by the Company to any
securities exchange on which the Shares are listed pursuant to
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requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder or
to shareholders.
(10) Blue Sky Qualifications. To endeavor, in cooperation with
the Agent, to qualify the Shares for offering and sale under the securities laws
of such jurisdictions in the United States as the Agent may designate, and to
maintain such qualifications in effect for as long as may be required for the
distribution of the Shares; and to file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above provided; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign entity in any jurisdiction in which it is not so qualified.
(11) Prospectus Supplement. To prepare, with respect to any
Shares to be sold through or to the Agent pursuant to this Agreement, a
Prospectus Supplement with respect to such Shares in a form previously approved
by the Agent and to file such Prospectus Supplement pursuant to Rule 424 of the
Rules and Regulations.
(12) To use its best efforts to list for quotation the Shares
on the National Association of Securities Dealers Automated Quotation National
Market System ("NASDAQ/NMS").
Section 4. PAYMENT OF EXPENSES
The Company will pay: (i) the costs incident to the authorization,
issuance, sale and delivery of the Shares and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments and exhibits
thereto; (iii) the costs incident to the preparation, printing and filing of any
document and any amendments and exhibits thereto required to be filed by the
Company under the Exchange Act; (iv) the costs of distributing the Registration
Statement, as originally filed, and each amendment and post-effective amendment
thereof (including exhibits), the Basic Prospectus, each Prospectus, any
supplement or amendment to any Prospectus and any documents incorporated by
reference in any of the foregoing documents; (v) the costs and fees in
connection with the listing of the Shares on any securities exchange; (vi) the
cost and fees in connection with any filings with the National Association of
Securities Dealers, Inc.; (vii) the fees and disbursements of counsel to the
Company and counsel to the Agent; provided, however that the Company shall have
no obligation to reimburse the Agent in respect of fees and disbursements of
counsel to the Agent in an amount in excess of $75,000; (viii) the fees and
expenses of qualifying the Shares under the securities laws of the several
jurisdictions as provided in Section 3(j) hereof and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the Shares as an
investment (including reasonable fees and expenses of counsel for the Agent in
connection therewith); (ix) all advertising expenses in connection with the
offering of the Shares incurred with the consent of the Company; and (x) all
other costs and expenses arising out of the transactions contemplated hereunder
and incident to the performance of the Company's obligations under this
Agreement.
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Section 5. CONDITIONS OF OBLIGATIONS OF THE AGENT
The obligation of the Agent, as Agent of the Company, under this
Agreement to solicit offers to purchase the Shares and the obligation of any
person who has agreed to purchase Shares to make payment for and take delivery
of Shares, are subject to the accuracy, on each Representation Date, of the
representations and warranties of the Company contained herein, to the accuracy
of the statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance by the Company of its
respective obligations hereunder, and to each of the following additional terms
and conditions:
(1) Registration Statement. The Prospectus as amended or
supplemented with respect to such Shares shall have been filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations within the
applicable time period prescribed for such filing by the Rules and Regulations
and in accordance with Section 3(k) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in any Prospectus shall have
been issued and no stop order proceeding shall have been initiated or threatened
by the Commission and no challenge shall have been made to the accuracy or
adequacy of any document incorporated by reference in any Prospectus; any
request of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have been complied
with; and the Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any document
incorporated by reference therein) without affording the Agent a reasonable
opportunity to comment thereon (which in the case of a Form 6-K may be a one day
time period for such comments).
(2) No Suspension of Sale of the Shares. No order suspending
the sale of the Shares in any jurisdiction designated by the Agent pursuant to
Section 3(j) hereof shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(3) No Material Omissions or Untrue Statements. The Agent
shall not have discovered and disclosed to the Company that the Registration
Statement or any Prospectus contains an untrue statement of a fact which, in the
opinion of counsel for the Agent, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(4) Legal Matters Satisfactory to Counsel. All corporate
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Shares, the form of the Registration Statement,
each Prospectus and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Agent, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
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(5) Officers' Certificate. The Company shall have furnished to
the Agent on the Closing Date a certificate, dated the Closing Date, of the
Chairman of the Board and the Chief Financial Officer of the Company stating
that to the best of such officers' knowledge:
(1) The representations, warranties and agreements of
the Company in Section 1 hereof are true and correct as of the Closing
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 5(a) and 5(b) hereof
have been fulfilled;
(2) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission;
(3) All filings required by Rule 424(b) of the
Rules and Regulations have been made; and
(4) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, (A) the
Registration Statement, as of its effective date, did not contain any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, (B) the Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (C) since the effective date of the Registration
Statement there has not occurred any event required to be set forth in
an amended or supplemented prospectus which has not been so set forth.
(6) Accountant's Letter. The Company shall have furnished to
the Agent on the Closing Date a letter of Ernst & Young addressed jointly to the
Company and the Agent and dated the Closing Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, in form and substance reasonably satisfactory to the Agent
confirming that they are independent accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating in
effect that:
(1) In their opinion, the financial statements and
schedules examined by them and included in the prospectus contained in
the Registration Statement comply in form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
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(2) They have made a review of any unaudited
financial statements included in the Prospectus in accordance with
standards established by the American Institute of Certified Public
Accountants, as indicated in their report or reports attached to such
letter;
(3) On the basis of the review referred to in (ii)
above and a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(1) the unaudited financial statements, if
any, included in the Prospectus do not comply in form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited financial statements included in the
Prospectus;
(2) the unaudited capsule information, if
any, included in the Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements from which it was derived or was not determined on
a basis substantially consistent with that of the audited
financial statements included in the Prospectus;
(3) at the date of the latest available
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the Closing
Date, there was any change in the capital stock, any increase
in debt of the Company and consolidated subsidiaries or, at
the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net assets
as compared with amounts shown on the latest balance sheet
included in the Prospectus; or
(4) for the period from the date of the
latest income statement included in the Prospectus to the
Closing Date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year, in consolidated
rental income, total revenues, net income or in the ratio of
earnings to fixed charges;
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except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(4) They have compared specified dollar amounts (or
percent ages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agree ment with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(7) Other Information and Documentation. Prior to the Closing
Date, the Company shall have furnished to the Agent such further information,
certificates and documents as the Agent or counsel to the Agent may reasonably
request.
(8) The Shares to be sold by the Company on any Closing Date
shall have been listed, subject to notice of issuance, on NASDAQ/NMS.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Agent.
Section 6. ADDITIONAL COVENANTS OF THE COMPANY
The Company covenants and agrees that:
(1) Acceptance of Offer Affirms Representations and
Warranties. Each acceptance by the Company of an offer for the purchase of
Shares shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore given to the Agent pursuant hereto are true and correct at the time
of such acceptance, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or his agent
of the Shares relating to such acceptance as though made at and as of each such
time (and such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented to each such time).
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(2) Subsequent Delivery of Officers' Certificates. The Company
agrees that during each Marketing Period, each time that the Registration
Statement or any Prospectus shall be amended or supplemented, each time the
Company (i) files an annual report on Form 20-F under the Exchange Act or (ii)
files a current report on Form 6-K under the Exchange Act, the Company shall
submit to the Agent (only if requested by the Agent) a certificate (y) as of the
date of such amendment, supplement, Time of Delivery relating to such sale or
filing or (z) if such amendment, supplement or filing was not filed during a
Marketing Period, as of the first day of the next succeeding Marketing Period,
representing that the statements contained in the certificate referred to in
Section 5(e) hereof which was last furnished to the Agent are true and correct
at the time of such amendment, supplement or filing, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and each Prospectus as amended and
supplemented to such time).
(3) Subsequent Delivery of Accountant's Letters. The Company
agrees that during each Marketing Period, each time that the Registration
Statement or any Prospectus shall be amended or supplemented to include
additional financial information, each time the Company (i) files an annual
report on Form 20-F under the Exchange Act or (ii) files a current report on
Form 6-K under the Exchange Act, the Company shall (only if requested by the
Agent and only if such documents include additional financial information) cause
Ernst & Young (or other independent accounts of the Company acceptable to the
Agent) to furnish the Agent (y) concurrently with such amendment, supplement,
Time of Delivery relating to such sale or filing or (z) if such amendment,
supplement, or filing was not filed during a Marketing Period, on the first day
of the next succeeding Marketing Period, a letter, addressed jointly to the
Company and the Agent and dated the date of delivery of such letter, in form and
substance reasonably satisfactory to the Agent, to the same effect as the letter
referred to in Section 5(g) hereof but modified to relate to the Registration
Statement and each Prospectus, as amended and supplemented to the date of such
letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company; provided, however, that if the Registration Statement or any
Prospectus is amended or supplemented solely to include financial information
as of and for a fiscal quarter, such accountants may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement unless there is contained therein any other accounting, financial or
statistical information that, in the reasonable judgment of the Agent, should be
covered by such letter, in which event such letter shall also cover such other
information.
Section 7. INDEMNIFICATION AND CONTRIBUTION
(1) The Company agrees to indemnify and hold harmless the
Agent and each person (including each partner or officer thereof) who controls
the Agent within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which such indemnified parties or any of them
may become subject under the Act, the Exchange Act, or the common law or
otherwise, and the Company agrees to
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reimburse the Agent and controlling person for any legal or other expenses
(including, except as otherwise hereinafter provided, reasonable fees and
disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof) or any post-effective amendment
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment thereof or supplement
thereto) or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnity agreements of the Company contained in this paragraph (a)
shall not apply to any such losses, claims, damages, liabilities or expenses if
such statement or omission was made in reliance upon and in conformity with
information furnished as herein stated or otherwise furnished in writing to the
Company by or on behalf of the Agent. The indemnity agreements of the Company
contained in this paragraph (a) and the representations and warranties of the
Company contained in Section 2 hereof shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the delivery of and payment for the Shares.
(2) The Agent agrees to indemnify and hold harmless the
Company, each of its officers who signs the Registration Statement on his own
behalf or pursuant to a power of attorney, each of its directors and each person
(including each partner or officer thereof) who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint or several, to
which such indemnified parties or any of them may become subject under the Act,
the Exchange Act, or the common law or otherwise and to reimburse each of them
for any legal or other expenses (including, except as otherwise hereinafter
provided, reasonable fees and disbursements of counsel) incurred by the
respective indemnified parties in connection with defending against any such
losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (including the Prospectus as part thereof) or any
post-effective amendment thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
thereof or supplement thereto) or the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, if
such statement or omission was made in reliance upon and in conformity with
information furnished as herein stated or otherwise furnished in
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writing to the Company by or on behalf of the Agent for use in the Registration
Statement or the Prospectus or any such amendment thereof or supplement thereto.
The indemnity agreement of the Agent contained in this paragraph (b) shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any indemnified party and shall survive the delivery of
and payment for the Shares.
(3) Each party indemnified under the provision of paragraphs
(a) and (b) of this Section 7 agrees that, upon the service of a summons or
other initial legal process upon it in any action or suit instituted against it
or upon its receipt of written notification of the commence ment of any
investigation or inquiry of, or proceeding against, it in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, it will promptly give written notice (herein called the Notice) of
such service or notification to the party or parties from whom indemnification
may be sought hereunder. No indemnification provided for in such paragraphs
shall be available to any party who shall fail so to give the Notice if the
party to whom such Notice was not given was unaware of the action, suit,
investigation, inquiry or proceeding to which the Notice would have related and
was prejudiced by the failure to give the Notice, but the omission so to notify
such indemnifying party or parties of any such service or notification shall not
relieve such indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of such indemnity agreement. Any indemnifying party shall be entitled at its own
expense to participate in the defense of any action, suit or proceeding against,
or investigation or inquiry of, an indemnified party. Any indemnifying party
shall be entitled, if it so elects within a reasonable time after receipt of the
Notice by giving written notice (herein called the Notice of Defense) to the
indemnified party, to assume (alone or in conjunction with any other
indemnifying party or parties) the entire defense of such action, suit,
investigation, inquiry or proceeding, in which event such defense shall be
conducted, at the expense of the indemnifying party or parties, by counsel
chosen by such indemnifying party or parties and reasonably satisfactory to the
indemnified party or parties; provided, however, that (i) if the indemnified
party or parties reasonably determine that there may be a conflict between the
positions of the indemnifying party or parties and of the indemnified party or
parties in conducting the defense of such action, suit, investigation, inquiry
or proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or parties
shall be entitled to conduct the defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the indemnified party
or parties and (ii) in any event, the indemnified party or parties shall be
entitled to have counsel chosen by such indemnified party or parties participate
in, but not conduct, the defense. If, within a reasonable time after receipt of
the Notice, an indemnifying party gives a Notice of Defense and the counsel
chosen by the indemnifying party or parties is reasonably satisfactory to the
indemnified party or parties, the indemnifying party or parties will not be
liable under paragraphs (a) through (c) of this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party or parties in connection
with the defense of the action, suit, investigation, inquiry or proceeding,
except that (A) the indemnifying party or parties shall bear the legal and other
expenses incurred in connection with the conduct of the defense as
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referred to in clause (i) of the proviso to the preceding sentence and (B) the
indemnifying party or parties shall bear such other expenses as it or they have
authorized to be incurred by the indemnified party or parties. If, within a
reasonable time after receipt of the Notice, no Notice of Defense has been
given, the indemnifying party or parties shall be responsible for any legal or
other expenses incurred by the indemnified party or parties in connection with
the defense of the action, suit, investigation, inquiry or proceeding.
(4) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 7, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 7 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnifying party in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Agent on the other shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Shares received by the Company and the total fee received by the Agent, as set
forth in the table on the cover page of the Prospectus, bear to the aggregate
public offering price of the Shares. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by each indemnifying party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities, or actions in respect thereof, referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation, preparing to defend or defending against any action or claim
which is the subject of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), the Agent shall not be required to contribute any amount in
excess of the aggregate fee applicable to the Shares sold by the Agent. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought,
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it will promptly give written notice of such service to the party or parties
from whom contribution may be sought, but the omission so to notify such party
or parties of any such service shall not relieve the party from whom
contribution may be sought from any obligation it may have hereunder or
otherwise (except as specifically provided in paragraph (c) of this Section 7).
(5) No indemnifying party will, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not such
Agent or any person who controls such Agent within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding) unless such settlement, compromise or consent includes an
unconditional release of such indemnified party and each such controlling person
from all liability arising out of such claim, action, suit or proceeding.
Section 8. STATUS OF THE AGENT
In soliciting offers to purchase the Shares from the Company pursuant
to this Agreement, the Agent is acting solely as agent for the Company and not
as principal. The Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Shares from the
Company has been solicited by the Agent and accepted by the Company but the
Agent shall have no liability to the Company in the event any such purchase is
not consummated for any reason other than breach of this Agreement by the Agent.
If the Company shall default in its obligations to deliver Shares to a purchaser
whose offer it has accepted, the Company shall (i) hold the Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii), in particular, pay to the Agent any commission to which
they would be entitled in connection with such sale.
Section 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE DELIVERY
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agent contained in this Agreement, or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agent or any person controlling the Agent or by or
on behalf of the Company, and shall survive each delivery of and payment for any
of the Shares.
Section 10. TERMINATION
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one day's
written notice of such termination to the other parties hereto. If, at the time
of a termination, an offer to purchase any of the Shares has been accepted by
the Company but the time of delivery to the purchaser has not occurred, the
provisions of
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this Agreement shall remain in effect until such Shares are delivered. The
provisions of Sections 2(c) (only to the extent of any sales made prior to
termination), 3(d), 3(h), 4, 7, 8 and 9 hereof shall survive any termination of
this Agreement.
Section 11. NOTICES
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Agent shall be directed to them as follows: Chase Securities
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, Esq.; Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇; Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.); notices to the Company
shall be directed to it as follows: Transpolis ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇ Hoofddorp, The Netherlands, Attention: Managing Director; Telephone
No.: (▇▇)▇▇ ▇▇▇▇ ▇▇▇, Telecopy No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇ (with a copy to ▇▇▇▇▇
Networks Limited, Wexham Springs, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, U.K.,
Attention: General Counsel and to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.).
Section 12. CONSENT TO JURISDICTION
The Company, by the execution and delivery of this Agreement, designates and
appoints ▇▇▇▇▇ Networks, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as its authorized agent upon whom
process may be served in any suit, proceeding or other action against the
Company in any federal or state court sitting in the County of New York
instituted by the Agent or by any person controlling the Agent in which such
Agent or any such controlling person is a party and based upon this Agreement,
or in any other action against the Company in any federal or state court sitting
in the county of New York, arising out of the offering made by the Prospectus or
any purchase or sale of the Shares in connection therewith and the Company
expressly accepts the nonexclusive jurisdiction of any such court in respect of
any such suit, proceeding or other action and, without limiting other methods of
obtaining jurisdiction, the Company expressly submits to nonexclusive personal
jurisdiction of any such court in respect of any such suit, proceeding or other
action. Such designation and appointment shall be irrevocable, unless and until
a successor authorized agent in the County and State of New York reasonably
acceptable to the Agent shall have been appointed by the Company, such successor
shall have accepted such appointment and written notice thereof shall have been
given to the Agent. The Company further agrees that service of process upon its
authorized agent or successor shall be deemed in every respect personal service
of process upon the Company in any such suit, proceeding or other action. In the
event that service of any process or notice of motion or other application to
any such court in connection with any such motion in connection with any such
action or proceeding cannot be made in the manner
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described above, such service may be made in the manner set forth in conformance
with the Hague Convention of the Service Abroad of Judicial and Extrajudicial
Documents in Civil and Commercial Matters or any successor convention or treaty.
The Company hereby irrevocably waives any objection that it may have or
hereafter have to the laying of venue of any such action or proceeding arising
out of or based on the Shares, or this Agreement or otherwise relating to the
offering, issuance and sale of the Shares in any federal or state court sitting
in the County of New York and the Company hereby further irrevocably waives any
claim that any such action or proceeding in any such court has been brought in
an inconvenient forum. The Company agrees that any final judgment after
exhaustion of all appeals or the expiration of time to appeal in any such action
or proceeding arising out of the sale of the Shares or this Agreement rendered
by any such federal court or state court shall be conclusive, and subject to the
limitations on enforcement described in the Prospectus, may be enforced in any
other jurisdiction by suit on the judgment or in other manner provided by law.
Nothing contained in this Agreement shall affect or limit the right of the Agent
to serve any process or notice of motion or other application in any other
manner permitted by law or limit or affect the right of the Agent to bring any
action or proceeding against the Company or its property in the courts of any
other jurisdiction. The Company further agrees to take any and all action,
including the execution and filing of all such instruments and documents, as
may be necessary to continue such designation and appointment or such substitute
designation and appointment in full force and effect. The Company hereby agrees
to the exclusive jurisdiction of the courts of the State of New York, or the
federal courts sitting in the county of New York, in connection with any action
brought by it under or in connection with this Agreement.
Section 13. JUDGMENT IN FOREIGN CURRENCY
The obligation of the Company in respect of any sum due to the
Agent shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
the Agent of any sum adjudged to be so due in such other currency, on which (and
only to the extent that) the Agent may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to the
Agent hereunder, the Company agrees as a separate obligation and notwithstanding
any such judgment, to indemnify the Agent against such loss. If the United
States dollars so purchased are greater than the sum originally due to the Agent
hereunder, the Agent agrees to pay to the Company, as the case may be, an amount
equal to the excess of the dollars so purchased over the sum originally due to
the Agent hereunder.
Section 14. BINDING EFFECT; BENEFITS
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This Agreement shall be binding upon the Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Agent within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and (b) the indemnity agreement of the Agent
contained in Section 7 hereof shall be deemed to be for the benefit of directors
of the Company (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company),
officers of the Company who have signed the Registration Statement and any
person controlling the Company. Nothing in this Agreement is intended or shall
be construed to give any person, other than the person referred to in this
Section, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
Section 15. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
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Section 16. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
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If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
▇▇▇▇▇ NETWORKS N.V.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. Case III
_________________________________
Name: ▇▇▇▇▇▇ ▇. Case III
Title: CEO, Chase H&Q